On April 3, 2007, the American Immigration Lawyers Association is reporting that the U.S. Citizenship and Immigration Services (USCIS) announced that it had received sufficient cases to reach the Fiscal Year 2008 quota for initial H-1B petitions. A copy of the official announcement is attached. As of this writing, the announcement has not yet been posted to the USCIS web site.
Sufficient petitions were received on the first day that filings were accepted, April 2, 2007. Under the USCIS regulations, if the cap is reached on the first available date of filing, a lottery system is triggered whereby the available petitions are randomly distributed among those filings received on the first day, as well as the second day the petitions were available, April 3, 2007. H-1B petitions received on or after April 4, 2007, will be rejected.
This announcement primarily affects individuals who will be coming to the United States to fill H-1B positions, and those who are already in the United States and wish to change from another status to H-1B status. In the latter group are recent college graduates, who may already be working based on F-1 “optional practical training” status.
For the time being, petitions may still be filed under separate H-1B quotas for individuals who have been awarded advanced degrees from U.S. colleges or universities and for individuals who qualify under free trade agreements that the United States has entered into with Chile and Singapore. Petitions for all of these individuals should be filed as quickly as possible.
Individuals who already have H-1B status are unaffected, except those who are transferring from a cap-exempt employer to a cap-subject employer. As discussed in prior announcements, some employers are not subject to the annual cap. These include institutions of higher education and their related or affiliated nonprofit entities; nonprofit research organizations; and government research organizations.
Several provisions that would increase available H-1B numbers are included in pending and proposed legislation before Congress this year. However, it is uncertain whether or when any of those provisions will be enacted into law or, if enacted into law, when the new H-1B numbers would actually become available. We will provide further guidance on this issue as the legislative picture clears. Reaching the H-1B cap on the first day the petitions are available is unprecedented.
We strongly encourage all affected businesses and individuals to contact their congressional representatives to demand an increase in the available H-1B petitions.